CRI/APN/67/82
CRI///52/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of

JOHN
JESUS VIVIEROS Applicant

V

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 15th day of
November, 1982

This is
an application to the High Court to review criminal proceedings and
order a "new trial" or alternative "to
direct the
trial magistrate to hear a plea in mitigation" by an accused
person sentenced to six months imprisonment without
the option of a
fine imposed upon him by a magistrate in Maseru for the offence of
failure to stop immediately. after accident
in which a person dies or
is injured contrary to s.122(l)(a) read with ss 2(a) of the Road
Traffic and Transport Order 1970, and
or alternatively an appeal
against the substantive sentence of imprinsonment.

On 8th
November 1982 I varied the sentence to a fine of R500 or to 6 montns
imprisonment in default of payment.

I said
reason will be given later and these now follow.

The
applicant/appellant was represented at the trail by Mr. attorney
Masoaoi. The applicant/appellant says he

instructed
his attorney in effect to plead not guilty because he had told him be
was not aware that he had hit a pedestrian, Mr.
Leboana denies this
in an affidavit he has filed at the instance of Crown counsel. The
fact of the matter is that the record shows
that charge was read to
the application/ appellant and the plea of guilty came from his mouth
and not Mr. Lesoabi's. What happened
between client attorney before
cannot be subject to further enquiry unless it is demonstrated that
Lr. Lasoabi had acted fraudulently.

2

At the
end of the outline of the case by the prosecutor the record shows
that applicant/appellant was again personally-asked if
he admits the
facts and he said he did. If we examine the applicant/appellant's
affidavit we will see at paragraphs 3(c) and 4
that he was aware that
something might have gone amiss because he says he nearly ran over a
man who suddenly entered his path and
swerved to avoid him. He adds
however that he did so successfully and need not have stopped because
he felt and heard nothing.
He averred that he had a large sized truck
but his affidavit came after he realised the severity of the sentence
imposed. The truth
lies perhaps somewhere in between, viz, that
having successfully avoided killing the pedestrian, he thought any
injury he might
have received would have been slight and he continued
on his way. The injuries were not in fact slight.

As for
mitigation Mr. Masoabi did his best as can be seen from page 5 of the
record of proceedings.

This is
not the case of a simple uneducated and unrepresented accused where a
misunderstanding was likely to have occurred.

The
application on for review must therefore be dismissed.

The
sentence how ever has struck me as harsh considering the fact that
accused pleaded guilty, had no previous convictions, (either
on
traffic or other offences) is only aged 20, was about to enter into
matrimony and (subsequently to apprehension) did cooperate
with the
traffic police. Furthermore the learned magistrate's sense of equal
justice to all appears to have abandoned for she look
into account
the appellant's race and/or natiorality as an aggrevating factor. We
have no evidence that other races (of whatever
shade) and or non
Lesotho nationals are worst traffic offenders than Basothos and/or
Lesotho nationals.

The
appeal against sentences was allowed and varied as

CHIEF
JUSTICE

15th
November 1982

For
Applicant Mr. Sello

For
Respondent.Mr. Kapaosi